No. 92-351 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JOE SILVA, 

Plaintiff and Appellant, 

-vsCITY OF COLUMBIA FALLS, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael H. Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John H. Bothe and Lauri Wallace; Bothe 6t ~auridsen, 

Columbia Falls, Montana 

For Respondent: 

Katherine R. Curtis, City Attorney, Columbia Falls, 

Montana 

Filed: 

submitted on Briefs: November 12, 1992 

Decided: May 18, 1993 
Justice Karla M. Gray delivered the Opinion of the Court. 

Appellant Joe Silva (Silva) appeals from an order of the 

Eleventh Judicial District Court, Flathead County, granting summary 

judgment to the City of Columbia Falls, Montana (the City) . We 

affirm. 

On January 15, 1989, Silva, a Columbia Falls police officer, 

suffered an industrial injury to his left thigh when he was kicked 

by an individual he was attempting to arrest. Silva was 

immediately eligible for workers' compensation because the injury 

occurred while he was on duty, and he has received benefits under 

the Workers' Compensation Act since the date of his injury. It 

appears that in approximately March 1989, while he was still off 

duty due to his leg injury, he fell down some steps. 

Silva began treatment for his left thigh injury on January 20, 

1989, with Dr. Chet Hope, his family doctor in Columbia Falls. On 

March 2, 1989, Silva applied in writing for police disability 

retirement benefits, based on a letter from Dr. Hope stating that 

Silva was currently unable to return to work as a police officer. 

The claim was denied on March 30, 1989. According to a letter to 

Silva from the city attorney, benefits were denied because 

statements from Dr. Hope indicated that Silvafs injury would not 

result in permanent disability or permanent impairment and because 

an evaluation by the Kalispell Orthopedic Clinic indicated that 

Silva should be able to return to work in the near future. 

Silva was evaluated by an Evaluation Panel at St. Patrick 

Hospital in Missoula in August, 1989. No specific trauma could be 

2 
identified as the cause of Silva's left thigh pain. In addition, 

the evaluation indicated that Silva's lumbar spine problem might be 

related to his falling down steps and that there might be permanent 

partial impairment of his lumbar spine. Surgical treatment of the 

lumbar spine specifically was not recommended. The conclusion of 

the Evaluation Panel was that Silva could return to work on a 

gradual basis. 

In September 1989, the City, through its chief of police, 

advised Silva that he would be scheduled to begin a gradual return 

to work on September 27, 1989, unless he was still on certain 

medication prescribed by his doctor. Dr. Hope subsequently advised 

the chief of police that Silva continued to require medication for 

inflammation and pain; Dr. Hope was uncertain how long the 

medication would be needed. 

On March 2, 1990, Silva was examined by Dr. James H. Mahnke, 

a neurosurgeon, for the purpose of obtaining an opinion about back 

surgery. Dr. Mahnke's opinion, based on an mI scan done in August 

1989 and on his own examination, was that Silva was suffering from 

a back lesion that would respond only to surgery. Dr. Mahnke did 

not connect the lesion to the January 1989 injury at that time. 

On June 6, 1990, the city attorney informed Silva that the 

City could no longer hold his position on the police force open. 

She noted the conclusion of the independent medical panel in August 

1989 that he could return to work on a gradual basis and advised 

that the City would terminate him as a police officer unless he 

arranged to return to work by July 6, 1990. 
On June 13, 1990, Silva renewed his request for police 

disability retirement benefits. In renewing the request, Silva's 

attorney stated "it is quite apparent that he is now precluded from 

returning to work as a patrolling officer . . . ." The attorney 

subsequently forwarded a letter from Dr. Mahnke, dated June 11, 

1990, stating that Silva's back lesion was attributable to his 

industrial injury in January 1989 and that Silva "was disabled from 

working as a police officer from the time of that injury." This 

letter, received by the City on June 21, 1990, was the City's first 

medical evidence indicating that Silva was permanently disabled 

from performing his duties as a police officer. 

The Police Commission of the City of Columbia Falls (Police 

Commission) considered Silva's reapplication for benefits on 

September 7, 1990, and determined that Silva was entitled to 

disability retirement benefits effective on that date. Silva 

disputed the Police Commission's use of September 7, 1990, as his 

entitlement date. The Police Commission subsequently decided that 

Silva was entitled to disability retirement benefits effective June 

21, 1990, the date the City first received medical evidence that 

Silva was permanently disabled from performing his duties as a 

police officer. 

Silva filed a complaint in District Court alleging that he was 

entitled to payment of disability retirement benefits retroactive 

to the date of his injury. He contended that the Police 

Commission's decision not to pay disability retirement benefits for 

the period between the date of his injury and June 21, 1990, was 
arbitrary and capricious and that it violated $5 19-10-402 and 19- 

10-502, MCA. 

The City moved to dismiss the complaint, presented additional 

evidence and affidavits, and requested that its motion be converted 

to one for summary judgment. Silva filed a cross-motion for 

summary j udgment . 

The District Court rejected the city's argument that it had no 

authority to review a local government agency's decision, but 

granted the City's motion for summary judgment on other grounds. 

The court determined that applicable statutes do not provide an 

express time when a transfer from the active duty list to the 

retired list is to take effect. It concluded that the Police 

Commission had discretion in deciding when an officer would be 

transferred to the retired list and, as a result, entitled to 

receive disability retirement benefits. Reviewing the evidence 

before it, the court then concluded that the Police Commission had 

not acted without a reasonable basis in making Silvals disability 

retirement benefits effective June 21, 1990- Silva appeals. 

The sole issue before us is whether the District Court erred 

in granting summary judgment in favor of the City. 

Initially, we note the City's argument on appeal that the 

District Court erred in refusing to dismiss Silvaqs complaint for 

failure to state a claim on the basis that the court had no 

authority for judicial review of a police cornmission~s decision 

regarding disability retirement benefits. We also note that the 

City failed to cross-appeal on this issue. Where a respondent 
seeks review of rulings on matters separate and distinct from those 

sought to be reviewed by an appellant, a cross-appeal is necessary. 

Rouse v. Anaconda-Deer Lodge County (1991), 250 Mont. 1, 817 P.2d 

690; Johnson v. Tindall (1981), 195 Mont. 165, 635 P.2d 266. Thus, 

we are precluded from addressing this issue on appeal. 

Silva argues first that the District Court erred as a matter 

of law in interpreting 5 19-10-402 and 19-10-502, MCA. Our 

standard in reviewing a court's conclusion of law is whether the 

court is correct. Steer, Inc. v. Dep't of Revenue (lggO), 245 

Mont. 470, 475, 803 P.2d 601, 603. 

In essence, Silva argues that 55 19-10-402 and 19-10-502, MCA, 

require the payment of police disability retirement benefits as of 

the date of the original injury or disability. Section 19-10-502, 

MCA, provides for both the amount and commencement of disability 

retirement benefits: when an officer is transferred to the retired 

list, "he shall thereafter receive monthly payments from the city's 

police retirement fund . . . ." Nothing in the statute requires 

payments to be made before transfer to the retired list or for any 

period of time prior to the transfer from the active list to the 

retired list. 

Section 19-10-402, MCA, sets forth how the determination of 

transferring a police officer injured or disabled in the line of 

duty from the active list to the retired list--for purposes of 

receiving the disability retirement benefits specified in 5 19-10- 

502, MCA--is made. The statute mandates transfer to the retired 

list when an officer receives duty-related injuries or disabilities 
and the injuries are, "in the opinion of the board of police 

commissioners or city council of the city or town, of such 

character as to impair his ability to discharge his duties as an 

active police officer . . . . " Section 19-10-402, MCA. The 

statute is clear that the appropriate entity has discretion in 

making the determination as to whether and when the injuries or 

disabilities permanently impair the officer's ability to perform. 

A transfer to the retired list is mandatory only upon the making of 

such an impairment determination. 

Silva concedes that neither statute expressly states when a 

transfer to the retired list must take effect. He argues that the 

statutes, read together, require benefit commencement as of the 

date of the onset of the injury or disability. Our discussion of 

the statutes makes it clear that such a conclusion is unwarranted. 

No express time for transfer to the retired list is contained in 

either § 19-10-402 or 5 19-10-502, MCA; furthermore, 5 19-10-402, 

MCA, does contain plain language vesting discretion in the police 

commission or city council authorized to make the impairment 

determination and any corresponding transfer to the retired list. 

To accept Silva's argument would require this Court to insert a 

provision into the statute which is not contained therein; it also 

would require us to insert a provision inconsistent with the 

legislative determination of when and how disability retirement 

benefits are to be paid. The role of this Court is to ascertain 

what is contained in statutes; it is not our role to insert or vary 

provisions of statutes adopted by the Montana legislature. See 5 
1-2-101, MCA. 

Silva also suggests that statutes governing other retirement 

systems in Montana, particularly the public Employees1 ~etirement 

System (PERS), buttress his statutory interpretation of 55 19-10- 

402 and 19-10-502, MCA. We disagree. Like the statutes before us, 

the PERS authorizes a specific entity to determine whether a member 

has become disabled. See 5 19-3-1003, MCA. Unlike the applicable 

statutes here, however, public employee disability retirement 

benefits are to commence "on the day following the member's last 

day of membership service." Section 19-3-1006, MCA. Thus, in the 

PERS, the legislature specifically provided a date certain-- 

related to when the member stopped working--forthe commencement of 

benefits, Such a date certain is not contained in 5 19-10-402 or 

B 19-10-502, MCA. Further, 5 19-3-1006, MCA, makes it clear that 

the legislature is aware of how to provide for a result similar to 

that argued by Silva here. It did not adopt such a provision for 

local government police disability retirement benefits. 

We conclude that $5 19-10-402 and 19-10-502, MCA, do not 

require that police disability retirement benefits commence or be 

paid as of the date of the original injury or disability. As a 

result, we hold that the District Court did not err in its 

statutory interpretation. 

Silvals second assertion of error relates to the District 

Court's failure to conclude that the Police Commission acted 

arbitrarily and capriciously in making his disability retirement 

benefits effective June 21, 1990. Silva contends that there was a 
total lack of record support for the police ~omrnission~s 

determination and that, as a result, the decision was arbitrary and 

capricious. 

We note here that this case does not present itself in the 

usual posture of a review by this Court of a grant of summary 

judgment. The ~istrict Court determined that it had inherent 

authority to review actions of an administrative agency under the 

"arbitrary and capriciousf1 standard alleged by Silva in his 

complaint and proceeded to review the Police Commission's 

determination pursuant to that standard. As discussed above, the 

City did not properly raise on appeal the issue of whether judicial 

review of the Police ~ommission~s decision was available, thereby 

precluding our review. Thus, for purposes of this appeal, we 

assume arguendo that the District Court had authority to review the 

Police Commissionls action pursuant to the "arbitrary and 

capriciousw standard. Our review is confined to whether the court 

erred in determining that the Police Commission's action was not 

Itwithout reasonable basisn and, therefore, not arbitrary or 

capricious. 

Websterrs Ninth New Collegiate Dictionary defines "a~bitrary'~ 

to mean "existing or coming about seemingly at random or by chance 

or as a capricious and unreasonable act of will;*I similarly, 

'Jcapriciousv is defined as "characterized by a sudden, impulsive 

and seemingly unmotivated notion or action," Thus, a review by a 

district court or this Court of an action under the "arbitrary and 

capri~ious~~ standard does not permit a reversal merely because the 
record contains inconsistent evidence or evidence which might 

support a different result. Rather, the decision being challenged 

must appear to be random, unreasonable or seemingly unmotivated, 

based on the existing record. ~ike the District Court, we cannot 

reach such a conclusion regarding the Police Commission~s 

determination to make Silva's disability retirement benefits 

effective June 21, 1990. 

Silva was originally injured on the job in January, 1989. H~S 

first application for disability retirement benefits, in March 

1989, was denied. Medical evidence at the time indicated that 

Silva would be able to return to work. In August, 1989, medical 

evidence indicated that Silva was able to return to work on a 

gradual basis at that time. The first medical. statement that Silva 

would not be able to return to his position as a police officer was 

received by the City on June 21, 1990. While Dr. Mahnke also 

indicated in that statement that he thought Silva had been disabled 

from working as a police officer from the date of the injury in 

January 1989, that statement conflicted with the medical evidence 

noted above covering much of that period. 

We cannot conclude, on the basis of this record, that the 

Police Commissionls decision to make silvals disability retirement 

benefits effective on the date the City received the Mahnke letter, 

and its refusal to make the benefits effective at any earlier time, 

was arbitrary and capricious. substantial evidence exists to 

support the decision and, while other decisions also may have been 

appropriate, we cannot conclude as a matter of law that the 
decision is random, seemingly.unmotivated or unreasonable based on 

the record before the Police Commission, the District Court and 

this Court. The District Court did not err. 

AFFIRMED. 

We concur: 
May 18, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

John H. Bothe and Laurie Wallace 

Bothe & Lauridsen 

P.O. Box 2020 

Columbia Falls, MT 59912 

Katherine R. Curtis, Esq. 

City of Columbia Falls 

P.O. Box 329 

Columbia Falls, MT 59912 

ED SMITH 

CLERK OF THE SUPREME COURT